Court allows Wal-Mart to subpoena Facebook and MySpace

April 26, 2009 | by Evan Brown | 4 Comments 

Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D.Colo. April 21, 2009)

A couple of electricians were severely burned when the electrical system they were working on in an Aurora, Colorado Wal-Mart shorted out. They sued Wal-Mart over their injuries. One of the plaintiffs’ wives brought a claim for loss of consortium.

During discovery, Wal-Mart sent subpoenas to Facebook, MySpace and Meetup.com seeking information about the plaintiffs. The plaintiffs filed a motion for protective order which would have prevented the social networking sites from providing the requested information. The plaintiffs claimed that the information should be protected by the physician-patient privilege or, as for the loss of consortium claim, the spousal privilege. The court denied the motion and allowed the subpoenas.

The court held that an earlier protective order entered in the case (to which the parties had agreed) protected the confidentiality of the information. And the plaintiffs had put the purported confidential facts, i.e., the extent of the injuries and the nature of the consortium, at issue by bringing the suit. Moreover, the information sought by the subpoenas was reasonably calculated to lead to the discovery of admissible evidence and was relevant to the issues in the case.

It’s worth noting that the court might have had other reasons to deny the motion for protective order that it did not mention. A privilege of confidentiality is usually destroyed when it is disclosed to a third party. How could information on Facebook or MySpace still be secret? Unless Wal-Mart was only seeking private messages sent either between the spouses or one of the plaintiffs and a doctor, it would seem that most everything these sites would have would not be confidential in the first place.

The Pirate Bay verdict is no big deal

April 17, 2009 | by Evan Brown | 1 Comment 

The big news story of the day is the guilty verdict from a Swedish court against the four guys behind The Pirate Bay. The judge sentenced them to a year in prison for facilitating copyright infringement and also ordered them to pay millions of dollars. The righteous indignation flows like akvavit.

I cannot see any reason why anyone outside the reach of Sweden’s laws should be all that concerned about this case. Sure, it’s grand spectacle to see an act of civil disobedience deliver its agents to purported martyrdom. But as for any legal significance outside Sweden, there is none. And does it teach us anything about the underlying interests that gave rise to the dispute? No. We have known for a long time that there are some who believe copyright law is too restrictive, and that those interests are pitted against the corporate and pecuniary interests of the big media companies.

So if one is to treat as news the fact that the RIAA and other content owners sometimes overreach, or that zealous advocates for copyright reform believe in their cause, please send me some of that sweet oblivion.

Website terms of service provide basis for exercise of personal jurisdiction

April 9, 2009 | by Evan Brown | 3 Comments 

CoStar Realty Information, Inc. v. Field, — F.Supp.2d —-, 2009 WL 841132 (D.Md. March 31, 2009)

Personal jurisdiction cases — even ones that involve the internet — are generally not all that interesting. But the case of CoStar Realty Information, Inc. v. Field is worth noting because of the way the personal jurisdiction analysis was tied to a provision found in online terms of service.

CoStar provides its paying customers with access to a proprietary database via the web. It claimed that certain defendants, who were residents of Texas and Florida, accessed the database using another customer’s password. So CoStar sued these defendants in federal court in Maryland.

These defendants moved to dismiss arguing, among other things, lack of personal jurisdiction. The court denied the motion.

It found that in the four or so years that the defendants accessed the database without authorization, they would have been presented with the online terms of service from time to time. Those terms of service contained a clause which provided that any litigation over use of the database would be conducted in Maryland. The court found that the defendants assented to these terms, and that the forum selection clause was valid and enforceable.

Map photo courtesy Flickr user Marxchivist under this Creative Commons license

Technology ethics: Seminar on responsible telephone use

April 1, 2009 | by Evan Brown | 4 Comments 

As an attorney I feel an obligation to preach to you about what’s right and what’s wrong. People routinely trivialize this important duty by characterizing the subject matter as “ethics” or “professionalism.”

As a technology attorney, especially as one cool enough to use Twitter and be on Facebook, I feel a special obligation to instruct you on responsible use of social media. I’ll get to that.

First we need to address some of the basics concerning wise use of technology. Starting with the telephone.

In this downturned economy, I’m looking for every opportunity I can to supplement my income. So I’m offering a one day seminar called Telephone Ethics: Avoiding the Pitfalls Inherent in Voice Communications Technology. Registration is $995 dollars. Email me to sign up. But hurry, only a few seats are still available!

With the advent of the telephone, lawyers are threatened with almost certain peril and inevitable claims of malpractice. In this full day, in-depth course, we will look at the issues that arise each day as lawyers adopt this frightening intriguing technology. Subjects will include:

  • Diligence: Avoid violating Rule 1.3 — which requires a lawyer to be diligent in representing a client — by promptly returning phone calls.
  • Confidentiality: Oops! Did I just spill the beans and violate Rule 1.6 by forgetting to shut the door of that phone booth?
  • Polite Ambulance Chasing: What to say when phoning the victim of that bad accident you saw on the freeway. How to delicately let him know you’re a lawyer while navigating the Rule 7.3 minefield.
  • Much, much more!

And we’ll also have some fun. I’m lining up a special telephone expert TBA who will give some practical tips on how to better monetize your telephone use. That session will be called “Dialing for Profit: Let Your Fingers Do The Walking to a Successful Law Practice.” Check back at this Web page later for more details.

Future seminar topics will include Responsible Faxing: How to Keep the Disciplinary Committee Off Your Line, and Appropriate PowerPoint Obfuscation: Making Sure Your Bullet Points Aren’t Too Sparse.

CLE accreditation will be requested if there is sufficient interest. Heaven knows we need those ethics credits. Oh, and happy April 1.

Telephone photo courtesy Flickr user smudie under this Creative Commons license.